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Vergara V. California Lawsuit Targeting Teacher Tenure Could Revolutionize U.S. Public Education, For Better And Worse

You might think that the leading clusters of education reform are the Bay Area, Phoenix, and Washington, DC. However, testimony that just concluded March 27 in a Los Angeles Superior Courtroom could lead to sweeping reforms for public education not just in the Golden State, but across the country as well.

Nine public school students filed the lawsuit nearly two years ago against the state of California, its department of education and other state educational organizations. The students claim they have been denied an equal education from that of their peers elsewhere in the state.

It turns out that public school students in the state have a constitutional right to “substantially equal opportunities for learning,” according to the 1976 ruling in Serrano v. Priest. However, the plaintiffs claim their rights are being infringed upon due to state laws designed to retain teachers on measures that have little to do with educating students.

Tenure – California’s Permanent Employment Statute (or “Tenure Law”) mandates that administrators either grant or deny permanent employment status to teachers after only 18 months. However, the plaintiffs claim that the amount of evaluation time is not sufficient to determine a teacher’s effectiveness in the classroom, as new teachers have yet complete their beginners’ program. L.A. Unified School District (LAUSD) Superintendent John Deasy seconded that assessment when he testified, “There is no way that this is a sufficient amount of time to make such an important decision.”

Dismissal Statutes – Once teachers receive tenure, it is nearly impossible to remove them from the classroom for poor performance. State records indicate there are more than 300,000 teachers in California’s public schools. Yet, according to the nonprofit Students Matter, the sponsor of Veagara v. California, over the last 10 years, only 91 tenured teachers have been removed from classrooms. And of those dismissals, just 19 were due to poor performance in the classroom. The process to remove a bad teacher can take up to 10 years and cost millions of dollars in taxpayer funding, noted Deasy.

Seniority – California law dictates that school districts must use the “Last In, First Out” Layoff Statute (or LIFO) if it ever has to lay off teachers. When it comes to making their choices, school boards are not allowed to consider a teacher’s effectiveness in the classroom. The Plaintiffs claim school districts are forced to retain ineffective teachers if they have been teaching longer, which diminishes the quality of education that students receive.

Since the students filed the suit, the California Teachers Association and the California Federation of Teachers — the state’s two largest teachers’ unions – joined the suit as defendants.

The students, though, are not without allies. Theodore J. Boutrous, Jr., the lead attorney, served on the legal team that worked to overturn California’s Proposition 8 (which banned same-sex marriage). They also have several local superintendents and other education experts who support their cause and plan to testify in court.

“This system is harming students every day,” Boutrous said. ”When students are denied this lifeline – when they are told that they are incapable of success or when they are denied the basic building blocks of an education – the effect is catastrophic.”

The students involved in the suit say they are not just doing this to reclaim their rights; they are also doing this to improve all schools in the state.

“One thing I can tell you for sure is that teachers matter,” said Raylene Monterroza, a high school junior, who spoke to reporters during a recess. “It’s crazy that anyone thinks teachers don’t matter. When I’ve had great teachers, I’ve felt like my dreams were possible. Having teachers, who believed in me and cared about whether I learned and grew as a student or not, made all the difference in the world. But when I had teachers who seemed like they didn’t even want to be there and couldn’t teach, I had to find a way out.”

Naturally, most teachers and teachers unions are appalled by the Vergara case, claiming that it is a direct assault on teachers and tenure by “the Billionaire Boys Club” of corporate education reformers. HuffPost blogger John Thompson singles out Eli Broad, Reed Hastings, Michael Bloomberg and Michelle Rhee (who is not a billionaire or a boy) among the members of this mythical club for attempting to “take over the L.A. Board of Education.” Thompson heatedly adds that Students Matter is nothing more than a well-paid spin machine (I will admit to being stridently spammed by their flacks throughout the trial); that Vergara v. California is nothing more than a “faux civil rights case”; and that Beatriz Vergaras and her fellow Plaintiffs are simply benighted “props” for top-down, data-driven, market-based corporate education interests.

From my neutral vantage point, there does seem to be valid points on each side of the debate. Though, as is often the case with any hotly contested education topic – affirmative action, student loans, standardized tests, Common Core – neither side seems capable of reasonable, balanced and humane dialogue.

Where do you stand on Vergara v. California? Let me know your balanced, fact-based opinion in the Comments area below.

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As a teacher for LAUSD for 25 years I am very disheartened and demoralized by this lawsuit. I know full well there are teachers who should probably find a different job, but it is very difficult to tell who is a “good” teacher and who is a “bad” one without some fair, widely accepted definition for a good teacher. Even the plaintiffs lauded certain teachers but it seemed completely anecdotal, and that is because a teacher who is good for one student may not be for another. The fact that a teacher likes young people and likes teaching seems to be a must, but how is that quantifiable? I am proud to say I am a union member and at the same time I believe there should be an equitable way to evaluate the “goodness” of a teacher but we don’t have that yet. Teachers should be a big part of that and so should students and parents. Right now we have a lawsuit that seems aimed at throwing the baby out with the bath water. It is insulting and humiliating for those of us working hard to be threatened with losing our right to due process because it is hard for districts to fire “bad” teachers. In my own school 2 of our teachers are named as defendants, “ineffective” teachers, and they are two of the best teachers I have ever seen. They teach in the magnet program for highly gifted students and the plaintiff did not receive the grade she thought she deserved. Is this the future of education? Teachers faced with the threat of lawsuits, loss of seniority rights, loss of due process along with all the increasing burdens we face. Who will we find to teach under these conditions? There is a better way. There are amazing teachers doing spectacular work. They are the education experts. But you will likely never hear from them because they are too busy doing their job. They are the ones to tap for reform of the teacher evaluation process. I will respect what they have to say. Until then I will stand with my union because we do not yet have a truly accurate and fair way to name the “good” or “effective” teachers and those who need either to improve or find new work.

Not sure why your comment was called out when it is so inherently flawed.

Your start well by admitting you know full well there are teachers that need to find another job and then completely contradict that sentiment by saying it is impossible to discern good teachers from bad ones.

No one deserves absolute job security, it serves absolutely no useful purpose. It does not motivate teachers and affords cover to the indolent who, in turn, by example cause in-calculable harm to children in their classrooms.

No one likes change, but the status quo is obviously failing and needs reform.

This Vergara lawsuit is certainly controversial if nothing else. I’ve read a few articles on both sides of the issue. The CTA and other critics of the lawsuit contend that the Vergara decision is horrible for public schools. Diane Ravitch claims that one of the teachers mentioned in the lawsuit as “ineffective” never received a negative evaluation or negative comment in 28 years of teaching. How could this be? On the other side of the issue, there are people like Eric Hanushek of the Hoover Institution. Hanushek says that by replacing the lower “5 to 8%” of teachers, we will add “trillions” in future “productivity.” I find this idea from Hanushek a piece of hyperbolical fiction. Despite all this, however, I am a supporter of the Vergara decision. Educators, more than any than any other profession, have been in control of our public schools. Teachers become principals, and principals become superintendents. If the schools are in poor shape, it’s time for educators, particularly those in leadership positions, to take some responsibility for these problems. I believe that we need to help these educational leaders…I support this decision, because it gives administrators more discretion to deal with ineffective teachers, and while we may not have ONE way to measure teacher effectiveness, I think school administrators are in the best position to discern the good from the bad. The easier it is for administrators to hold bad teachers accountable, the more likely they will be held accountable. Public education is about teaching children; it’s not a lifestyle career that we need to protect for those without a passion for this job.

It is not impossible to tell a bad teacher from a good one, as long as there is a fair and accurate way to make such a determination. We don’t have that system yet. I am for change. I am for being evaluated fairly. And of course one would hope that all administrators would be subject to a similar evaluation and be fired or rewarded. I am not in favor of the status quo. I want to see change. But I want to see change that is fair and frankly smarter. This change is dumb because it causes all teachers, good or bad, to feel threatened. I do not enjoy “absolute job security.” I can be fired. I am grateful that I cannot be fired without just cause.

First of all, as a teacher, I am not against fair changes to our evaluation and speeding up the remedy process, whether that is helping a teacher or firing them if they refuse. But you seem to be giving all the power of evaluation to administrators. That would be a repetition of a mistake that got us into this mess long ago. And, unfortunately, some administrators have not been classroom teachers (and they do come to evaluate us regularly.) I will concede that administrators deserve a voice in the evaluation process, but so should parents, fellow teachers and students. Student test scores is a tempting but tricky tool for evaluation. Measuring student progress, not attainment of standardized goals, is a better measure of a teacher. I have had students who came in with very poor skills. By the end of the year I believe they made great progress with me but they still had not reached grade level competency. Should I be fired? I have had other students who came in with such anger at parents that they failed on purpose, and told me so. Should I be evaluated on that child’s test scores? Look, I know I have a tremendous responsibility, I have no interest in abdicating it. My point is what we have now is not good, most teachers would probably agree with that. But without a truly fair measure of a teacher’s “goodness,” or “effectiveness,” that includes input from a variety of sources, it is the lesser of two evils. And by the way, should not the administrators be subject to evaluations from all the stakeholders as well? Here’s what I would love to hear from pundits and superintendents, “What do you need to be the best teacher you can be?” Let’s not let this moment go by without talking about and including concrete ways to help all teachers, not just in ways to ensure they can be removed. Thanks.

I am not a member of any Billionaire Boys’ Club (being neither male nor a billionaire) and I am definitely NOT a fan of Michelle Rhee and her emphasis on charter schools. However, much as I support public education and pro-union as I am, I am not 100% behind the teachers’ union and that is because I agree with the students who have brought this case. A good or great teacher can make a HUGE impact on her/his students in a very positive, long term way. A bad teacher can have the same impact, in a completely negative way. My children (now 17 and 20) have always gone to public school, we are huge public school supporters. That does not mean that there are not changes that should be made and the first is the timeline for granting tenure. The next, is to look at individual teachers and their effectiveness, and I do NOT mean by looking at their students’ test scores. But we need to identify the good teachers and keep them and get rid of the bad ones (and yes, bad ones exist in all school systems, public, private, charter, etc.) I think these young people who have brought this suit are actually quite amazing. They are demanding a good education and teachers who respect them by respecting their time and using it wisely. We need to support them in their efforts.

The ruling is absolutely marvelous victory for children and education and specifically cites union protected tenets for job protection that shock the conscience:

“To wit: In the past 10 years, only 91 teachers in California have been fired, and only 19 for unsatisfactory performance. Yet according to one state witness, between 2,750 to 8,250 California teachers rank as grossly ineffective.”

Just taking the average of the numbers provided of grossly ineffective teachers at 5,500 and assuming each of those grossly ineffective teachers muddles through 5 classes every day and each class only has 25 students, a light load to be sure, those 5,500 “teachers” provide a disgusting, anti-social, anti-societal, intensely selfish standard to 687,500 student every day.

If one good teacher can inspire, how much damage to these failures cause everyday?

I actually have mixed feelings about the decision regarding tenure. I have been a special education teacher for 14 years now. I adore my students, have close relationships with parents and have had only positive reviews by my site administrators. I also believe that tenure should take a longer amount of time to attain and that there should be more random observations. I get frustrated when I am given difficult, ‘tests count’ classes when other teachers are given easy, by the book soft classes because those teachers are ineffective and, yes, tenured. As to every argument, there is a flip side. Bad teachers are released all the time, but not so as you’d see them in the stats. They are hounded, sent to re-training, basically life is made unbearable for them so that they quit. Good teachers are released all the time, but not so as you’d see them in the stats. They are hounded, given a negative review (which is arbitrary), sent to re-training, basically life is made unbearable until they quit. Their crime? Being outspoken against a policy, being an advocate for a student or giving a parent too much information, being active in the union, the list goes on as it does in the private sector. An untenured teacher knows better than to open their mouth, voice an opinion. As an untenured teacher, the district tried to fire me for alerting them to student abuse by a favored district family. Thank goodness my site administrators (there are good ones) went to bat for me. With laws weakened, even tenured teachers will not be able to be outspoken and do their job which is to teach, yes, but also to submit their insights to strengthen their profession and protect their students from bad practices, illegal practices (districts will do it if they think they can get away with it and it’s cost effective) and blatant abuse. Taking away tenure is taking away the voice of those on the frontline with your kids! Our hands are already tied in so many areas, we are already the scapegoats of what is wrong in education, if our voices are silenced, your kids are pretty much on their own.

I agree that a public debate needs to take place about Tenure. Unfortunately, it took a lawsuit to get us talking. My children are grown, and went to private high schools, after public grade school. Our rural public school district was so riddled by their fraternal and patronage hiring practices back in the 90′s that we had no choice. The number of students advancing to higher education from the system was not acceptable. The teachers/administrators, mostly all wonderful people, just didn’t have the ability to produce a competitive educational environment. So, something seems inherently wrong about forcing an institution, public or private, to keep an employee who does not produce value…especially when it involves children. A better model for hiring and retaining teachers must be found.